Citation Nr: 21000520 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 12-11 747 DATE: January 5, 2021 ORDER Entitlement to service connection for a neck disability claimed as secondary to service-connected lumbar spine myositis, including focal annular tear/small left paracentral disc protrusion at L5/S1 (lumbar spine disability) is granted. REMANDED Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected lumbar spine and left shoulder disabilities is remanded. Entitlement to service connection for a left upper extremity radiculopathy, to include as secondary to a neck disability is remanded. Entitlement to a disability rating in excess of 20 percent for left shoulder infraspinatus and supraspinatus tendinosis, diffuse thinning of articular cartilage over the glenoid, chondral degeneration of the humeral head, impingement syndrome, and acromioclavicular joint arthritis (left shoulder disability) is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s cervical neck arthritis manifested within one year following separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a neck disability have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2007 to August 2007. This appeal comes to the Board of Veterans’ Appeals (Board) from August 2010, September 2011, October 2011, and November 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the August 2010 rating decision, the RO denied service connection for a right shoulder disability. In the September 2011 rating decision, the RO denied service connection for a neck disability. In the October 2011 rating decision, the RO denied service connection for left upper extremity radiculopathy. Entitlement to an increased evaluation for a left shoulder disability was denied in the November 2014 rating decision. The appeals of entitlement to service connection for right shoulder and neck disorders and left upper extremity radiculopathy disorders were remanded for further development in a June 2015 Board remand. Also remanded at that time was a claim of entitlement to service connection for depression. Service connection for other specified depressive disorder was granted in a February 2017 rating decision. In a March 2019 Board decision/remand, the Board found that the criteria for a total disability rating based on individual unemployability (TDIU) was met. The Board remanded the current issues on appeal for further development. After the appeal was certified to the Board, in October 2020, the Veteran’s attorney indicated that he and the firm will no longer be representing the Veteran in his VA disability claim; however, he did not file a motion showing good cause for withdrawal of representation. His request to withdraw is not in compliance with the filing requirements outlined in 38 C.F.R. § 20.608 (b), and for the purposes of this decision, the Board will continue to recognize the representative listed above as the Veteran’s representative. 1. Entitlement to service connection for a neck disability claimed as secondary to service-connected lumbar spine myositis, including focal annular tear/small left paracentral disc protrusion at L5/S1 (lumbar spine disability) is granted. Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Board has reviewed all the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds that the evidence of record is in relative equipoise whether the Veteran’s cervical spine disability manifested within one year of separation from service. The Veteran alleges that a cervical spine condition is related to his active service. See August 2010 claim and November 2013 VA Form 9. The Veteran has also asserted that his neck disability is secondarily related to his service-connected lumbar spine disability. See July 2010 statement. The Veteran also asserted that he had suffered from neck pain back to 2007, when he separated from active duty, but he had not received treatment for his neck pain at that time. See March 2017 statement. The Veteran was initially afforded a VA examination in October 2011. At that time, the Veteran complained of continued neck pain with radiation to his left upper extremity. The examiner diagnosed cervical muscle spasm and cervical spondylosis without myelopathy. The examiner opined that the condition was not incurred in or caused by the Veteran’s military service, as there was no evidence of left upper extremity radiculopathy on the exam. As noted by the Board in the June 2015 remand, the examiner did not address the etiology of the Veteran’s neck disability. Moreover, the examiner did not address the Veteran’s theory of entitlement, secondary service connection. Hence, the opinion was found to be inadequate. VA provided another examination in November 2015. The examiner found that the Veteran had a diagnosis of cervical spine degenerative disc disease with a history of surgical treatment via discectomy in 2014. The examiner opined that it was less likely than not that the Veteran’s cervical spine disability was proximately due to or the result of, or aggravated by, a service-connected condition, or related to active duty service. The examiner first noted that the available STRs were silent for the Veteran having sought care for a cervical spine complaint during service. The examiner also noted that the earliest VA treatment records documenting cervical spine pain were in 2010. Regarding the secondary theory of entitlement, the examiner explained that there was no commonly accepted medical connection between conditions of the low back and cervical spine conditions. Further, the examiner noted that while shoulder complaints may be due to a cervical spine condition, such as radiculopathy resulting in shoulder pain, the examination and history in the Veteran’s case do not support such a causality in this case, as the Veteran had a left shoulder diagnosis of clear etiology that was unrelated to the Veteran’s cervical spine. Additionally, explained the examiner, commonly accepted medical knowledge showed that symptoms arising from peripheral nerve disorders propagate from proximal to distal, not in the opposite direction, meaning a peripheral nerve disorder from the cervical spine could cause disability of the shoulder, but peripheral nerve problems of the shoulder could not cause disability of the cervical spine. The March 2019 Board remand noted that the Veteran alleged that he had suffered from neck symptoms back to his active duty in 2007 and that the Veteran is competent to comment on observable symptomatology such as neck pain. See Layno v. Brown,6 Vet. App. 465, 469 (1994). The Board expressed that the Veteran’s lay statements undermined the rationale found in the 2015 VA examination, that the cervical spine condition was not related to service by noting that the Veteran did not seek treatment for his cervical spine until 2010. Further, the Board noted that the Veteran is documented as having arthritis in his cervical spine in 2010, only three years after his separation from active duty. Therefore, the Board remanded for an opinion that addressed two issues: 1) whether the Veteran’s cervical spine disability had onset in or is otherwise related to service in light of symptoms since service discharge; and 2) whether the Veteran’s cervical spine disability manifested to a compensable degree within one year of the Veteran’s separation from active duty service. Following the March 2019 remand, the Veteran was afforded a VA examination in August 2020.The examiner opined that the Veteran’s cervical neck condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there are no records of injury to the neck or neck treatment during service. The examiner expressed that upon leaving service in August 2007, the Veteran had no treatment for neck pain but was found to have spondylosis in July 2010 with no history of accident, injury, or trauma during service. The examiner noted that the Veteran was found to have spondylosis at an early age in 2010, which is most likely genetic as he has no history of trauma to the cervical spine and was only in service for a short period, which is not long enough to determine repeated use as a factor. However with regards to the question of whether it is at least as likely as not that the cervical spine arthritis manifested within one year of the Veteran’s separation from active duty in August 2007, the examiner opined that it is at least as likely as not that the cervical spine arthritis manifested within one year of the Veteran’s separation from active duty in August 2007.The examiner noted that the time line of onset likely could have been shortly after leaving service and diagnosed 1 to 2 years later. The examiner stated that one would suspect impact right after service since he had no complaints during service and spondylosis progressively worsened. When asked to specifically address the Veteran’s March 2017 statement describing neck symptoms extending back to the Veteran’s service in 2007, the examiner expressed that it is likely to be coincident that the onset of symptoms was right after service as he had no history of trauma during service. The examiner noted that the x-ray spondylosis in 2010 was present for at least several years. Having thoroughly reviewed the evidence of record and upon resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a cervical neck condition is warranted under the presumptive provisions pertaining to chronic diseases. The evidence of record for and against the Veteran’s service connection claim is at the very least in relative equipoise. When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s cervical neck arthritis manifested within one year following separation from active service. Here, the August 2020 VA examiner opined that it is at least as likely as not that the Veteran’s cervical spine arthritis manifested within one year of the Veteran’s separation from active duty in August 2007.The examiner noted that the time line of onset likely could have been shortly after leaving service and diagnosed 1 to 2 years later. Although there is evidence against the claim, the Board finds the lay and medical evidence indicate that the Veteran’s neck condition at least as likely as not manifested during the year following active service. In addition, the Veteran has consistently reported experiencing neck pain since service, and the Board considers these competent reports to be credible. Thus, resolving reasonable doubt in his favor, the Board finds that service connection is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected lumbar spine and left shoulder disabilities is remanded. The Veteran asserts his right shoulder disability is a result of his service-connected left shoulder and low back disabilities. See March 2010 statement. He submitted a report of right shoulder radiographs with a private provider from March 2010. The radiographs showed calcific tendinitis of the shoulder. The Veteran was afforded a VA examination in April 2010. At that time, the Veteran reiterated his right shoulder condition was due to the service-connected left shoulder disability. He indicated that he experiences pain that gets worse when doing overhead activities. The examiner diagnosed right shoulder subacromial bursitis and opined that this condition was not caused by or a result of his service-connected left shoulder as the right shoulder pain shown in service was acute and transitory. While the VA examiner addressed whether a causal relationship exists between the Veteran’s right shoulder and his service-connected left shoulder, a portion of the stated rationale for that opinion-addressing improvement of the right shoulder is unclear, and the examiner did not explicitly address whether the Veteran’s right shoulder is aggravated by his left shoulder. Thus, the Board remanded the claim for an adequate opinion in June 2015. An examination was provided in November 2015. At this examination, however, no right shoulder diagnosis was provided. In the accompanying opinion, the examiner opined that the Veteran’s claimed condition was less likely than not related to service or proximately due to or the result of the Veteran’s service-connected condition. The rationale, for obvious reasons, centered on the Veteran not having a currently diagnosable right shoulder condition. In its March 2019 Board remand, the Board found that the November 2015 opinion was inadequate for decision-making purposes. The Board noted that if a disability existed at any point during the appeal period, or in close proximity to the claim for service connection, it will be considered a current disability even if it has since resolved. See McClain v. Nicholson,21 Vet. App. 319 (2007); Romanowsky v. Shinseki,26 Vet. App. 289 (2013). The Board noted that the April 2010 VA examination showed a diagnosis of subacromial bursitis. The Board stated that the diagnosis was not addressed in the November 2015 VA examination. Further, the Board indicated that VA treatment records document right shoulder pain, and a November 2014 VA examination documents right shoulder pain that may cause functional loss. See also September 2017 VA treatment records documenting right shoulder pain. The Board noted that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability if it results in functional impairment of earning capacity. Saunders v. Wilkie,886 F.3d 1356, 1361(Fed. Cir. 2018). Thus, the Board found the November 2015 VA examination was also inadequate to decide the instant case because there is no discussion of existing records that note pain that results in functional loss. The Board expressed that an adequate examination should be sought that determines the following: 1) whether right shoulder subacromial bursitis was present during the appeal period, reconciling any findings with the April 2010 VA examination; 2) whether there is any other disability of the right shoulder during the appeal period; 3) and whether any diagnosed disability is related to active duty service or caused or aggravated by the Veteran’s service-connected lumbar spine or left shoulder disabilities. Thereafter, the Veteran was afforded a VA examination in August 2020. The examiner noted a current diagnosis of right shoulder strain. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there are no records of injury or trauma to the right shoulder during service. The examiner noted that there was one record that reports a fall in May 2007 with a normal right shoulder x-ray. The examiner opined that it was likely a mistake as the condition was a fall on left shoulder. The examiner stated that it is less likely than not that the Veteran’s right shoulder condition was proximately due to or the result of the Veteran’s service-connected left shoulder and low back disabilities. The examiner stated that none of these conditions would be expected to affect functioning of the right shoulder and they are all unrelated to the right shoulder functioning. The examiner noted that the Veteran cannot determine at what point the right shoulder became painful prior to 2010 and under what circumstances. The examiner was asked to address the previous diagnosis of right shoulder subacromial bursitis in the April 2010 VA examination and reconcile any diagnosis, or lack thereof, with the April 2010 diagnosis. The examiner stated that this diagnosis is consistent with any overuse activity by the Veteran. The examiner noted that bursitis is an acute inflammation which generally resolves, especially without repeated trauma which this Veteran did not report. The examiner stated that the Veteran can have repeated episodes of the same condition or resulting in some chronic strain and inflammation of the right shoulder. The examiner opined that it is less likely as not that any diagnosed right shoulder condition, to include any finding of pain that results in functional impairment of earning capacity, had onset in, or is otherwise related to, active military service. The examiner stated that there is no evidence of a right shoulder injury prior to discharge from military. The examiner noted that one acute episode of bursitis self-resolved in 2010. The examiner opined that it is less likely as not that any diagnosed right shoulder disability, to include any finding of pain that results in functional impairment of earning capacity, is caused or aggravated by the service-connected low back and left shoulder disabilities. The examiner stated that there is no medical connection between the right shoulder and arm function and left shoulder disability and low back condition. The examiner expressed that the nerve and muscle and blood innervation of the right arm/shoulder is completely separate from the service-connected conditions of low back pain and left shoulder disorder. In a September 2020 Correspondence letter, the Veteran stated that on May 2007 he was treated at Wilford Hall Medical Center Emergency Room and complained of pain in his right shoulder. The Veteran stated that on May 10, 2007, he was evaluated at the Trainee Health, Reid Clinic for shoulder strain. The Veteran expressed that, after his accident in 2007, the Veteran was complaining of pain in both shoulders, but the medical services were focused on only one side of his body and his right side was not paid much attention. The Veteran stated that the injury on his right shoulder has always been present and has worsened over time. After review of the most recent VA examination, the Board finds that an addendum opinion is warranted. Here, the Veteran is competent to comment on observable symptomatology such as right shoulder pain. See Layno v. Brown,6 Vet. App. 465, 469 (1994). The Veteran’s lay statements regarding continuous right shoulder pain since his accident in 2007 was not considered in the August 2020 VA examiner’s opinion. Furthermore, the Board finds that the August 2020 VA medical opinion does not provide clear separate findings and rationales relating to causation and aggravation to support the conclusion reached. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018) (causation and aggravation are independent concepts that require separate findings and rationales in medical opinions). For example, the examiner indicated that the Veteran’s bursitis diagnosis is consistent with any overuse activity by the Veteran. However, the examiner failed to address whether the Veteran was forced to overuse his right shoulder as a result of his service-connected left shoulder and/or low back disability, and thus the Veteran’s right shoulder disability was aggravated by the service-connected disabilities. Therefore, remand is necessary to address the Veteran’s statement regarding continuous right shoulder pain since service and whether the Veteran’s right shoulder disability is aggravated by his service-connected left shoulder and low back disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 2. Entitlement to service connection for a left upper extremity radiculopathy, to include as secondary to a neck disability is remanded. In a July 2010 statement, the Veteran indicated that he is suffering from a tingling left shoulder blade that extends to his arm and some fingers. The Veteran was initially afforded a VA examination in October 2011. At that time, the Veteran complained of continued neck pain with radiation to his left upper extremity. The examiner opined that the condition was not incurred in or caused by the Veteran’s military service, as there was no evidence of left upper extremity radiculopathy on the examination. The Veteran was afforded a VA examination for his peripheral nerve condition in November 2015. The examiner diagnosed the Veteran with cervical radiculopathy. The examiner later stated that that the records appear to indicate a diagnosis via EMG of cervical radiculopathy in 2011, however, at current this diagnostic test finding is clinically silent. The examiner stated that it is commonly accepted medical knowledge that symptoms arising from peripheral nerve conditions propagate from proximal to distal, and not in the opposite direction. The examiner noted that currently the Veteran’s radiculopathies appear clinically silent. Thus, the examiner opined that the Veteran’s cervical radiculopathies is less likely than not proximately due to (or as a result of), nor aggravated beyond natural progression by, active military service nor the Veteran’s service-connected lumbar spinal or left shoulder condition. The Veteran was afforded a neck VA examination in August 2020. The Veteran was diagnosed with radiculopathy. The examiner noted that the Veteran’s C5/C6 left nerve roots were involved. However, no opinion was provided with regards to the etiology of the Veteran’s cervical radiculopathy. As the Board has granted service connection for the Veteran’s neck disability, the Board finds that an addendum opinion is warranted in order to address the etiology of the Veteran’s cervical radiculopathy. 3. Entitlement to a disability rating in excess of 20 percent for left shoulder infraspinatus and supraspinatus tendinosis, diffuse thinning of articular cartilage over the glenoid, chondral degeneration of the humeral head, impingement syndrome, and acromioclavicular joint arthritis (left shoulder disability) is remanded. In August 2020, the Veteran was afforded a VA examination for his shoulder disability. With regards to testing the Veteran’s left shoulder range of motion, the examiner noted that the Veteran reported much pain and did not want to test his left shoulder. The examiner noted that pain, weakness, fatigability or incoordination significantly limit the Veteran’s functional ability with repeated use over time and during a flare-up. The examiner was unable to describe in terms of range of motion. The examiner stated that frequency was constant; duration of event was constant; and severity was moderate. The examiner noted that precipitating factors/causes, was any movement or lifting; and alleviating factors included rest. The Board finds this examination to be insufficient because the examiner did not provide range of motion estimates based on the Veteran’s lay statements. In the case of Sharp v. Shulkin, the Court noted that for a joint examination to be adequate, the VA examiner “must express an opinion on whether pain could significantly limit” a Veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.” The Court further stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. Here, the VA examiner failed to indicate why it was not feasible to estimate the Veteran’s range of motion loss to pain on use or during flare-ups, and thus, on remand, the Veteran should be afforded an adequate VA examination. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain an addendum opinion from a VA examiner for the issue of service connection for a right shoulder disability. After careful review of the claims file (including the lay contentions), the examiner is requested to opine, for each right shoulder conditions identified in the post-service medical records (to include right shoulder strain, and bursitis), as to a) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right shoulder condition diagnosed during the appeal, had its onset in, or is otherwise related to, active military service. The examiner must discuss the Veteran’s statements regarding continuous right shoulder pain since service. b) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right shoulder condition was caused by the overuse of the right shoulder as a result of the service-connected left shoulder limitations, and/or lumbar back limitations. c) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right shoulder condition is aggravated beyond natural progression by overuse of the right shoulder as a result of the service-connected lumbar back disability and left shoulder disability. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. 3. Obtain an addendum opinion from a VA examiner for the issue of service connection for a left upper extremity radiculopathy, to include as secondary to the Veteran’s neck disability. After careful review of the claims file (including the lay contentions), the examiner is requested to opine as to a) whether it is at least as likely as not that the Veteran’s left upper extremity radiculopathy was caused by the Veteran’s neck disability. b) whether it is at least as likely as not that the Veteran’s left upper extremity radiculopathy is aggravated beyond natural progression by the Veteran’s neck disability. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board 4. Obtain a VA examination to determine the current severity of the Veteran’s left shoulder disability. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner is asked to specifically state whether motion of the Veteran’s arm is limited to 25 degrees from the side. The examiner should determine whether the Veteran’s shoulder disability results in any additional loss of motion due to weakness, excess fatigability, pain, flare-ups, or incoordination. The examiner must express an opinion on whether pain could significantly limit functional ability during flare-ups or [on repetitive use] over a period of time, and the examiner’s determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use or a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during repeated use or flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion on repeated use or flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.